Familial relationships following a traditional surrogacy arrangement

Mary Welstead, Visiting Professor in Family law University of Buckingham

In January 2024, Theis J declined to discharge a child arrangements order for contact between a surrogate mother and a child created for a same-sex couple. The judge also declined the application by the child’s non-biological ‘father’ for a step parent adoption order.

The child had been created by a traditional surrogacy arrangement; the surrogate was thus the child’s biological mother. She did not wish to care for her son but wanted contact with him in order that he might know his identity as a child born of surrogacy.

The judgment contained 37 references to Z’s identity as the biological child of a surrogate mother. His welfare needs were seen as requiring this identity to be confirmed throughout his childhood.

A person’s identity is not determined by biological relationships alone; rather, it develops over time and by way of many factors. The acceptance of identity as an important part of a child’s welfare needs requires justification, rather than mere articulation.